Why Liberals Don't Trust Kagan

Within hours of Elena Kagan's
nomination to the Supreme Court Monday, it was clear that her
confirmation battle would -- at the outset, anyway -- represent a
departure from President Obama's previous nominee, Sonia Sotomayor:
Kagan will have to overcome skepticism from the left along with the
expected skepticism from the right.

The same thing that makes
her confirmation so likely -- the lack of a paper trail for opponents to
parse and attack -- has also become a prime source of concern for her own side. There's little hard evidence to
reassure liberals that she'll adjudicate in the way they would prefer.
Kagan's lack of a judicial record and scant legal writing during a
career spent mostly in politics and the deanship of Harvard Law School
leave open the possibility she'll turn out to be more conservative than
advertised.

Most Republicans privately consider Kagan an
acceptable Democratic nominee, and have shown no appetite for a
filibuster. The frustration has come mainly from the left. On Monday,
the liberal group MoveOn.org asked Democratic senators to refrain from
endorsing or praising Kagan too effusively in hopes of gaining leverage
to force her to commit to positions absent from her record.

Both reactions are reasonable. It's unlikely Republicans could
block her confirmation, even if they tried. Kagan's carefully guarded
views make her uniquely suited to survive the rigors of the modern
confirmation process. Ever since Robert Bork's strident conservatism
was used to defeat his nomination to the Supreme Court in 1987, his
successors have gone to ridiculous lengths to mask their beliefs or
propagate the fiction that they've never considered legal questions
that would undoubtedly come before them.

Kagan seems like the
ultimate embodiment of this process. She appears unassailably
''mainstream'' in the sense that she has never uttered any belief or
conviction that could be held up as evidence to the contrary. She may
be the least likely of any candidate, ever, to get ''borked.''

The liberal complaint against Kagan is threefold: that she
wasn't sufficiently aggressive in hiring women and minorities to the
Harvard faculty; that she took worrisome positions on executive power,
the war on terrorism, and corporate campaign spending; and that she
isn't the counterpart to Antonin Scalia that the left has long desired.

The
real problem, though, is that liberals don't trust her. Several
commentators have compared her lack of a paper trail to that of Harriet
Miers, who was briefly put forward by George W. Bush. But Kagan's
distinguished career clearly qualifies her for the job, and Miers was
not.

A better illustration of liberals' fears would be David
Souter. Souter was nominated to the court by George H.W. Bush and was
thought to possess many of the same qualities that make Kagan
attractive. His beliefs seemed squarely in line with his party's, he was recommended by those familiar with his record as a judge on the
First Circuit Court of Appeals, and he seemed a safe bet for
confirmation. But Souter proved far more liberal than anticipated.

Souter slipped past conservative gatekeepers because of where he
served. The hot-button legal cases that the Supreme Court takes up -- on
race, abortion, religion, homosexuality -- tend to come out of the West
(the Ninth Circuit) or the Deep South (the Fifth and Eleventh
Circuits). Rarely do they come from the First Circuit in the Northeast.
Thus was Souter able to amass a substantial record of legal opinions without revealing his positions on issues that would later divide the Supreme Court. Like Kagan, he was essentially untested on important matters of federal law,
and ultimately disappointed the president who put him there.

Souter's example led to the professionalization of the scouting
and nominating process for conservative judges. It's no coincidence
that every subsequent Republican nominee has been a fully credentialed
conservative. Miers is the lone exception. She is remembered as
having been uniquely unqualified, but it was as much her lack of a
written record that prompted conservatives to turn on her. They feared
another Souter.

With a first-class intellect and sterling
credentials, Kagan seems certain to excel in her hearings. But if she
does reveal herself to be further to the right than everyone expects,
and the concern becomes opposition, then next time liberals may get their
Scalia.